B-161365, OCT. 3, 1967

B-161365, OCT. 3, 1967

BIDS - SPECIFICATIONS - RESTRICTIVE DECISION TO SECY. OF AGRICULTURE CONCERNING PROTEST OF INTERNATIONAL HARVESTER CO. AGAINST REJECTION FOR CRAWLER-TYPE TRACTOR WITH FUEL PRIMING PUMP AND AWARD TO CATERPILLAR TRACTOR CO. A MODIFICATION OF A STANDARD SPECIFICATION FOR CRAWLER-TYPE TRACTOR TO EXCLUDE GRAVITY-PRIMED EQUIPMENT AND AWARD TO SECOND LOW BIDDER WHO OFFERED FUEL PRIMING PUMP WAS A RESTRICTION ON COMPETITION CONTRARY TO FORMALLY ADVERTISED PROCUREMENTS SINCE IT IS SHOWN THAT GRAVITY PRIMED FUEL SYSTEM REQUIRES ONLY FEW MINUTES OF EXTRA TIME IN A YEAR AND SYSTEM DOES NOT REQUIRE SPECIAL MECHANICAL SKILL. THEREFORE SINCE RESTRICTIVE SPECIFICATIONS PRECLUDE VALID AWARD, AWARD WHICH WAS SUSPENDED PENDING INSTANT DECISION SHOULD BE CANCELLED.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED JUNE 23, 1967, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION AND OTHER MATERIAL FURNISHED BY YOUR DEPARTMENT, CONCERNING THE PROTEST OF INTERNATIONAL HARVESTER COMPANY, CONSTRUCTION EQUIPMENT DIVISION, OF MELROSE PARK, ILLINOIS, AGAINST THE REJECTION OF ITS BID TO SUPPLY A CRAWLER-TYPE TRACTOR EQUIPPED WITH ADIESEL ENGINE AND SPECIFIED ACCESSORIES AS NONRESPONSIVE TO INVITATION FOR BIDS NO. 120-ARS-67 ISSUED MARCH 8, 1967, BY THE AGRICULTURAL RESEARCH SERVICE, NORTHERN ADMINISTRATIVE DIVISION, MINNEAPOLIS, MINNESOTA. THE BID WAS REJECTED BECAUSE IT DID NOT PROPOSE TO FURNISH A FUEL-PRIMING PUMP AS REQUIRED BY THE SPECIFICATIONS AND BECAUSE THE BID OFFERED A SELECTIVE SLIDING GEAR TRANSMISSION, WHICH WAS AN AMBIGUOUS DESCRIPTION OF THE TRANSMISSION OFFERED.

THE SPECIFICATIONS CONTAINED IN THIS INVITATION WERE BASED UPON AND REFERENCED THE APPLICABLE FEDERAL GUIDE ESTABLISHING STANDARDS FOR THE PURCHASE OF CRAWLER TRACTORS, INTERIM FEDERAL SPECIFICATION KKK-T 00631B (GSA-FSS) OF AUGUST 28, 1964, AS AMENDED, WITH CERTAIN MODIFICATIONS INCLUDED IN THE INVITATION. IN PARTICULAR, PARAGRAPH 3.7.2 OF THE SPECIFICATION DETAILS OF THE INVITATION, WHICH CLOSELY PARALLELS THE SIMILARLY NUMBERED PARAGRAPH IN THE FEDERAL SPECIFICATION, INCLUDES AS AN ADDITIONAL REQUIREMENT FOR THE DIESEL ENGINE:

"FUEL PRIMING PUMP TO RECHARGE FUEL SYSTEM AFTER DRAINING SHALL BE PROVIDED.' PAGE 8 OF THE INVITATION ALSO STATES:

"A FUEL PRIMING PUMP IS REQUIRED FOR STARTING THE DIESEL ENGINE UNDER FIELD CONDITIONS WHERE IT IS NECESSARY TO PRIME THE ENGINE AND ELIMINATE MAN-HOURS LOST IN RE-PRIMING OPERATION.' PRIOR TO BID OPENING, INTERNATIONAL REQUESTED THAT PARAGRAPH 3.7.2 BE MODIFIED SO AS TO ENCOMPASS ITS GRAVITY-PRIMED SYSTEM BY REQUIRING:

"FUEL PRIMING PUMP TO RECHARGE FUEL SYSTEM AFTER DRAINING SHALL BE PROVIDED UNLESS THE FUEL TANK IS LOCATED HIGH ENOUGH SO THAT GRAVITY FEED WILL RECHARGE FUEL SYSTEM AFTER DRAINING.'

THIS REQUEST WAS DENIED BY THE CONTRACTING AUTHORITIES AND THE SPECIFICATIONS REMAINED AS ORIGINALLY ISSUED.

AT BID OPENING, MARCH 30, 1967, THE $17,594.24 BID OF THE PROTESTING FIRM, INTERNATIONAL HARVESTER, WAS LOW. WHEN THIS LOW BID WAS FOUND TO BE NONRESPONSIVE, AWARD WAS MADE TO THE SECOND LOW BIDDER, CATERPILLAR TRACTOR COMPANY, FOR $19,083.11 ON APRIL 21, 1967. HOWEVER, DELIVERY HAS BEEN SUSPENDED PENDING A FINAL DECISION ON THE PROPRIETY OF THIS AWARD.

WE UNDERSTAND THAT WHILE THE SUCCESSFUL BIDDER OFFERS A FUEL-PRIMING PUMP AS AN EXTRA-COST OPTION (LIST PRICE $23) ON ITS LINE OF CRAWLER TRACTORS, INTERNATIONAL HARVESTER, FOR REASONS DISCUSSED BELOW, DOES NOT BELIEVE FUEL-PRIMING PUMPS ARE NEEDED WITH ITS GRAVITY PRIMED FUEL SYSTEM, SO THAT THESE PUMPS ARE NOT AVAILABLE ON INTERNATIONAL CRAWLER TRACTORS, EITHER AS STANDARD EQUIPMENT OR AS AN OPTION.

THE REPORT OF JUNE 23, 1967, PAGE 2, STATES THAT A FUEL-PRIMING PUMP IS NEEDED TO "AVOID THE TIME-CONSUMING OPERATION OF REPRIMING THE FUEL SYSTEM IN THE FIELD AFTER AIR HAS ENTERED THE FUEL SYSTEM.' THE REPORT SUGGESTS THAT IN THE ABSENCE OF A FUEL-PRIMING PUMP A MECHANIC IS NECESSARY FOR "BLEEDING VALVES AT SPECIFIC LOCATIONS ON THE ENGINE.' FINALLY, IT IS STATED THAT THE PRIMING SYSTEM OFFERED BY INTERNATIONAL HARVESTER IS UNACCEPTABLE BECAUSE IT WILL NOT OPERATE "WITHOUT MANUAL ASSISTANCE.'

AS TO WHAT IS DESCRIBED AS THE "TIME-CONSUMING OPERATION OF REPRIMING THE FUEL SYSTEM," ACCORDING TO THE DATA CONTAINED IN THE OPERATOR'S MANUAL FOR AN INTERNATIONAL T0-15 (SERIES B) CRAWLER TRACTOR, FURNISHED WITH THE REPORT, THIS OPERATION CONSISTS OF FILLING THE FUEL TANK, OPENING A CUT- OFF VALVE TO PERMIT THE FUEL TO FLOW FROM THE TANK INTO THE FUEL LINE, OPENING TWO VENT VALVES SITUATED ON TOP OF TWO ADJACENT FUEL FILTERS, AND, WHEN CLEAR FUEL FLOWS OUT OF THE VENT VALVES, CLOSING THEM IN ORDER. ACCORDING TO THE PHOTOGRAPH ILLUSTRATING THIS OPERATION, THESE FUEL FILTERS, WITH VENT VALVES, ARE LOCATED ON THE SIDE OF THE ENGINE WITHIN A FEW INCHES OF EACH OTHER. THIS ENTIRE PROCEDURE COULD NOT CONCEIVABLY TAKE MORE THAN A FEW MINUTES MORE THAN THE HAND-PUMPING OPERATION NECESSARY WITH A FUEL PRIMING PUMP.

THIS SAME OPERATOR'S MANUAL EXCERPT STATES THAT INTERNATIONALHARVESTER'S FUEL SYSTEM NEEDS TO BE VENTED AND PRIMED WHEN: "AN ENGINE, IN OPERATION, RUNS OUT OF FUEL. "A NEW ENGINE IS BEING STARTED FOR THE FIRST TIME. "FUEL FILTERS HAVE BEEN SERVICED OR FILTER ELEMENTS REPLACED. "FUEL PIPING HAS BEEN DISCONNECTED OR LOOSENED.'

INTERNATIONAL HARVESTER CONTENDS THAT ITS TRACTORS REQUIRE FUEL PRIMING ONLY A FEW TIMES A YEAR, USUALLY INCIDENT TO CHANGING THE FUEL FILTERS. THIS ASSERTION IS NOT QUESTIONED IN THE REPORT.

IF THE INFREQUENT NEED TO PRIME THIS GRAVITY-PRIMED FUEL SYSTEM IS CONSIDERED TOGETHER WITH THE INSIGNIFICANT AMOUNT OF EXTRA TIME INVOLVED IN EACH PRIMING OPERATION, WHEN COMPARED TO PRIMING WITH A HAND PUMP, IT BECOMES APPARENT THAT WE ARE DISCUSSING AT THE VERY MOST A DIFFERENCE OF A FEW MINUTES OF EXTRA TIME IN A YEAR. THIS MARGINAL DISTINCTION IS AN INAPPROPRIATE BASIS FOR THE REJECTION OF A MACHINE WEIGHING NEARLY TEN TONS, COMPOSED OF LITERALLY THOUSANDS OF PARTS AND COSTING IN THE RANGE OF 20 THOUSAND DOLLARS.

A LETTER OF JUNE 30, 1967, FROM THE REQUIRING ACTIVITY IN BRAWLEY, CALIFORNIA, TO THE AGRICULTURAL RESEARCH SERVICE, STATES THAT THE INTENDED OPERATORS OF THESE TRACTORS HAVE "LITTLE KNOWLEDGE OF ENGINE MAINTENANCE AND PERFORMANCE EXCEPT FOR THE NORMAL REQUIREMENTS THAT TRACTORS NEED FUEL IN THE FUEL TANKS, OIL IN THE TRANSMISSION, WATER IN THE RADIATOR, ETC.' TAKEN TOGETHER WITH THE STATEMENT IN THE REPORT OF JUNE 23, 1967, THAT "THE TRACTOR DRIVER CANNOT OPERATE THE TRACTOR UNTIL A MECHANIC HAS ELIMINATED THE AIR FROM THE FUEL SYSTEM," THIS WOULD IMPLY THAT A GRAVITY- PRIMED FUEL SYSTEM WILL RESULT IN MANY LOST MAN-HOURS AWAITING A MECHANIC. WE DO NOT AGREE.

WE ARE NOT CONVINCED THAT MEN WHO ARE COMPETENT TO OPERATE A RATHER COMPLEX TEN-TON MACHINE CAN BE SO IGNORANT OF EVEN THE MOST BASIC MECHANICS AS TO BE INCAPABLE OF MASTERING THE TASK OF OPENING AND CLOSING TWO ADJACENT VENT VALVES IN SEQUENCE AS IS REQUIRED TO PRIME THIS SYSTEM. IT APPEARS THAT THE OPERATORS WOULD BE FACED WITH THE PROBLEM OF REPRIMING THE FUEL SYSTEM WITHOUT THE ASSISTANCE OF A MECHANIC ONLY WHEN THE MACHINE IS ALLOWED TO RUN OUT OF FUEL. SINCE THE INTENDED OPERATORS ADMITTEDLY KNOW "TRACTORS NEED FUEL IN THE FUEL TANKS," THIS PROBLEM SHOULD NOT ARISE. IN OTHER CASES THE SKILL OF THE OPERATOR DOES NOT MATTER FOR ACCORDING TO THE EXCERPT FROM THE INTERNATIONAL HARVESTER OPERATOR'S MANUAL, QUOTED ABOVE, IT WILL BE SEEN THAT A PERSON POSSESSING SOME MECHANICAL APTITUDE WILL ALREADY BE PRESENT, CHANGING FUEL FILTERS, TIGHTENING THE FUEL LINES, OR DOING OTHER MAINTENANCE WORK ON THE FUEL SYSTEM FOR THE NORMAL OCCASIONS REQUIRING REPRIMING OF THE FUEL SYSTEM.

THE REPORT ALSO STATES THAT THE GRAVITY-TYPE FUEL SYSTEM OFFERED BY INTERNATIONAL HARVESTER WILL NOT PERFORM THE PRIMING OPERATION "WITHOUT MANUAL ASSISTANCE.' SINCE THE ACCEPTABLE FUEL-PRIMING SYSTEM OFFERED BY CATERPILLAR INVOLVES THE ADJUSTING OF THE VENT VALVE, THE UNLOCKING OF A PUMP KNOB, PUSHING AND PULLING SAID KNOB IN AND OUT BY HAND TO FORCE FUEL THROUGH THE FUEL LINE WHILE OBSERVING THE FUEL FLOW FOR AIR BUBBLES, AND THEN, WHEN THE FUEL IS FREE OF AIR BUBBLES, RELOCKING THE PUMP KNOB, AND PERHAPS THE LOOSENING AND TIGHTENING THE FUEL INJECTION PUMP LINES WITH A WRENCH, WHICH OPERATIONS ARE MOST DECIDEDLY MANUAL, WE SEE NO REAL DISTINCTION BETWEEN IT AND A GRAVITY-FUEL PRIMING SYSTEM WHICH ALSO REQUIRES MANUAL ASSISTANCE.

ON THE BASIS OF THE ABOVE, WE CONCLUDE THAT THE MODIFICATION OF THE STANDARD SPECIFICATION TO EXCLUDE GRAVITY-PRIMED FUEL SYSTEMS BY REQUIRING ALL OFFERORS TO FURNISH FUEL-PRIMING PUMPS WAS AN UNDUE RESTRICTION ON COMPETITION CONTRARY TO THE PURPOSES OF THE STATUTES AND REGULATIONS GOVERNING FORMALLY ADVERTISED PROCUREMENTS.

THIS DOES NOT IMPLY THAT WE QUESTION THE DESIRABILITY OF A FUEL PRIMING PUMP FOR USE ON A DIESEL ENGINE WHICH DOES NOT OTHERWISE PROVIDE A SATISFACTORY METHOD OF PRIMING. HOWEVER, WHERE A MANUFACTURER HAS ADOPTED A FUEL FEED SYSTEM WHICH ADEQUATELY PRIMES THE ENGINE WITHOUT A FUEL- PRIMING PUMP, THE IMPOSITION OF A REQUIREMENT IN THE SPECIFICATION FOR SUCH A PUMP SERVES NO PURPOSE OTHER THAN TO RESTRICT COMPETITION.

WE RECOGNIZE THAT, AS A GENERAL RULE, THE DRAFTING OF SPECIFICATIONS IS THE FUNCTION OF THE PROCURING AGENCY, AND NOT THE FUNCTION OF THIS OFFICE. 17 COMP. GEN. 554, 557; 38 COMP. GEN. 71, 75. WHEN CIRCUMSTANCES WARRANT, HOWEVER, THIS RULE HAS NOT PREVENTED THIS OFFICE FROM DETERMINING THAT PARTICULAR SPECIFICATIONS WERE IMPROPERLY DRAWN.

THE EXISTENCE OF AN APPLICABLE INTERIM FEDERAL SPECIFICATION ESTABLISHING STANDARDS FOR THE PROCUREMENT OF CRAWLER TRACTORS, WHICH DOES NOT LIMIT THE MANNER OF FUEL PRIMING IS, BY ITSELF, RATHER PERSUASIVE EVIDENCE THAT THE INSTANT SPECIFICATIONS ARE RESTRICTIVE. WE ARE FURTHER ADVISED THAT THE COMPARABLE MILITARY SPECIFICATIONS, MIL-T-12229C OF JUNE 30, 1965, AND MIL-T-52270A OF NOVEMBER 7, 1966, DO NOT RESTRICT FUEL-PRIMING TECHNIQUES.

IN THIS REGARD, IN OUR DECISION B-152861, APRIL 10, 1964, TO THE SECRETARY OF THE ARMY, WE AID:

"* * * WE ARE INCLINED TO THE VIEW THAT THE PROMULGATION OF A MILITARY OR FEDERAL SPECIFICATION IS TO BE CONSIDERED AS A DELIBERATE AND CONSIDERED DETERMINATION THAT ARTICLES CONFORMING THERETO WILL ADEQUATELY SERVE THE NEEDS OF ALL DEPARTMENTS AND AGENCIES CONCERNED. THE IMPOSITION OF ADDITIONAL REQUIREMENTS NOT AUTHORIZED THEREIN AS OPTIONS IS THEREFORE ESPECIALLY SUSCEPTIBLE TO QUESTION BY POTENTIAL SUPPLIERS AS AN EFFORT EITHER TO PROCURE ARTICLES IN EXCESS OF WHAT IS NECESSARY TO MEET THE GOVERNMENT'S MINIMUM NEEDS, OR, TO RESTRICT COMPETITION FOR THE BENEFIT OF ONE, OR TO THE DETRIMENT OF ANOTHER, PROSPECTIVE SUPPLIER. WE THEREFORE BELIEVE THAT SUCH DEVIATIONS SHOULD BE AUTHORIZED ONLY UPON A CONVINCING SHOWING OF COMPELLING NEEDS. * * *"

ON THE BASIS OF THE PRESENT RECORD, WE MUST CONCLUDE THAT THE UNNECESSARILY RESTRICTIVE REQUIREMENT IN THE SPECIFICATIONS PRECLUDED A VALID AWARD UNDER THE SPECIFICATION AND, THEREFORE, THE AWARD TO CATERPILLAR TRACTOR COMPANY SHOULD BE CANCELLED.